Justice Elena Kagan told a federal judicial conference the Supreme Court is not doing the Trump administration's bidding, even as she became the first sitting justice to demand an enforcement mechanism for the court's ethics code.
Kagan, the liberal justice appointed by President Barack Obama in 2010, addressed the Ninth Circuit's annual judicial conference on Thursday evening and took direct aim at critics who have cast the court as a rubber stamp for the White House. Her remarks came roughly a month after a Supreme Court term that produced several high-profile rulings on Trump administration policies, some favorable to the president, others sharply against him.
The justice did not sugarcoat the court's ideological tilt. She conceded the 6-3 conservative majority has produced outcomes she considers wrong. But she drew a hard line at the accusation that the justices function as an arm of the executive branch.
The Washington Examiner reported Kagan's remarks as follows:
"Is this court very conservative? Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? You know, yes. But is this court the kind of puppet for the current administration? I think definitely not."
That framing, acknowledging philosophical disagreement while defending institutional independence, mirrors comments Chief Justice John Roberts made earlier this year. Roberts, who was appointed by President George W. Bush in 2005, called it "absurd" to suggest justices carry out the political agendas of the presidents who put them on the bench.
Roberts put it bluntly:
"Certainly, I'll always be grateful for President Bush for appointing me, and I'm sure all my colleagues are grateful there. But the idea that I'm carrying out, or they're carrying out some different agendas. Really fallacious."
Both justices have reason to push back. A Washington Post/Ipsos poll found that 46 percent of respondents believe the court decided its Trump-related cases based on a political agenda. Only 25 percent said the rulings were determined by the law itself. That gap should concern anyone who values an independent judiciary, and it reflects a public perception problem the justices themselves helped create by issuing a string of blockbuster rulings on politically charged executive actions.
The court's actual record this past term complicates the "puppet" narrative considerably. The justices struck down Trump's sweeping tariff policy, the so-called "Liberation Day" tariffs, in February. In June, the court ruled against the president's executive order on birthright citizenship. And the justices blocked Trump's bid to fire Federal Reserve Governor Lisa Cook.
Trump himself pushed back on the idea that the court only hands him victories. After the tariff ruling, he held a lengthy press conference at the White House and criticized the six justices in the majority.
The court did side with the administration on other fronts. It upheld Trump's decision to end temporary protected status for Haiti and Syria, and it ruled in favor of the president's authority to fire certain executive branch officials. A mixed record is not the hallmark of a compliant institution.
Kagan also addressed Trump's unprecedented appearance at the Supreme Court in April, when he became the first sitting president to attend oral arguments. He sat in on the birthright citizenship case, a move that drew intense media speculation about its symbolic meaning.
Kagan dismissed the significance. She told the conference the session proceeded as normal, with no acknowledgment of the president's presence from the bench.
"He was just like a person who came in and sat down and then had to listen to an argument."
She predicted Trump would likely not return for another session. If that assessment holds, the visit will register as a historical footnote rather than an act of institutional pressure.
Kagan did not limit her conference remarks to defending the court's independence. She also became the first sitting justice to publicly call for an enforcement mechanism attached to the Supreme Court's ethics code, a position that puts her at odds with the court's current approach of voluntary compliance.
AP News reported that Kagan acknowledged the existing rules are sound but insufficient without a way to hold justices accountable.
"The thing that can be criticized is, you know, rules usually have enforcement mechanisms attached to them, and this one, this set of rules, does not."
She suggested Chief Justice Roberts could appoint a committee of respected judges to oversee compliance, a proposal that would create external accountability for the first time in the court's history. Kagan framed the mechanism as serving a dual purpose:
"Both in terms of enforcing the rules against people who have violated them but also in protecting people who haven't violated them, I think a system like that would make sense."
Public confidence in the court has dropped sharply. Four in ten American adults now say they have hardly any confidence in the justices, and 70 percent believe the court is guided by ideology rather than neutrality. Those numbers reflect years of ethics controversies and politically charged rulings, and they give Kagan's enforcement push a practical urgency beyond the usual Washington process debate.
The court's next term begins with oral arguments on October 5. On the docket: cases involving state-level bans on certain firearms, commonly labeled "assault weapons", and a challenge to Colorado's decision to bar Catholic preschools from its universal preschool program. Both cases sit squarely at the intersection of constitutional rights and progressive policy, and both will test whether the court's conservative majority continues to apply originalist principles or bends to political winds.
Kagan is right that the court is not a puppet. Its record proves that much. But the deeper problem she identified, a court with no mechanism to police its own members, will outlast any single administration. Rules without consequences are suggestions, and the Supreme Court should know the difference better than anyone.
